Foreign Surveillance Turned Domestic

The Foreign Intelligence Surveillance Act (FISA) on Trial

Abstract

This review first contextualizes the history of the Foreign Intelligence Surveillance Act (FISA) and explores the ways that its scope has expanded through amendments such as Section 702. In addition, this review considers the procedures used in FISA surveillance, with a focus on the practices of minimization and querying. With this grounding, the review then investigates a recent case (United States v. Hasbajrami) where the defendant, a U.S. person, challenged the use of FISA and Section 702 against him. The court ruled that warrantless Section 702 surveillance, as it was carried out against Hasbajrami, violated his Fourth Amendment protections. However, the court ultimately ruled in favor of the government, pursuant to the good faith exception. After analyzing the logic of the ruling, the review assesses the impact for future investigations. Finally, the review offers a three-tiered approach to limiting FISA overreach in the future, looking at legislative, corporate, and individual steps.